PPL Montana v. Montana – Oral Argument – December 07, 2011

Media for PPL Montana v. Montana

Audio Transcription for Opinion Announcement – February 22, 2012 in PPL Montana v. Montana

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John G. Roberts, Jr.:

We will hear argument next today in Case 10-218, PPL Montana v. Montana.

Mr. Clement.

Paul D. Clement:

Mr. Chief Justice and may it please the Court:

The State’s claim to back rent here is truly remarkable.

When these dams were built back in the day, PPL’s predecessors, Petitioner’s predecessors, secured all the necessary property rights and easements.

As part of that process, particularly for the dams that created reservoirs, there was an elaborate process of getting flood easements and in many cases paying substantial amounts of money.

In that process, nothing was hidden; it was open and notorious.

Indeed, the State assisted by lending the utilities its eminent domain power to deal with holdouts.

But now, 100 years later, the State comes in with a holdout claim of its own and suggests that it’s entitled to massive compensation based on the small strip of riverbed that lies underneath these flooded reservoirs and the dams.

The Montana Supreme Court allowed that claim to succeed to the tune of tens of millions of dollars of back rent.

Now it seems that–

Anthony M. Kennedy:

Well, is your point that there should be a Federal rule of — of laches or estoppel, or are you just building up to the fact that this is traditional, well recognized doctrine and there’s been — and there’s been a sudden change?

Paul D. Clement:

–That’s exactly where I was going, Justice Kennedy.

I was suggesting that the Montana Supreme Court could only approve this result, which clearly did unsettle settled expectations, by deviating from well-settled principles of Federal navigability law.

Now, the mistakes were a little bit different for each of the rivers at issue.

As to the Clark Fork and the Upper Missouri, the critical error I believe with the Montana Supreme Court decision was its failure to focus on the river segments that are directly at issue and instead focus on the river as a whole.

With the Madison the errors are different, because with the Madison there is no evidence that any stretch of that river was navigable at statehood.

So there the problem was principally that the court relied on modern day evidence of recreational use to substitute for true historic evidence of commercial navigation at statehood.

Samuel A. Alito, Jr.:

On the issue of whether we should look to the segments or to the river as a whole, what authorities can we consult?

You rely heavily on U.S. v. Utah, and that certainly is a relevant precedent; but there is disagreement about what it means and the only authority that I see that U.S. v. Utah cited was The Montello, which seems to cite nothing whatsoever.

So where do we — is that the end of the trail?

Is there anyplace else we can look?

Paul D. Clement:

Well, I — I mean, it’s close to the end of the trail.

I mean, you can go back to The Daniel Ball, but that’s not going to help you any more than The Montello.

I think, though, that the critical cases really are Utah — but I also think there are other cases that this Court has had — Oklahoma v. Texas would be an example — where this Court has looked as a discernible segment of a river.

Brewer-Elliott is another one.

And I think the starting point for the Court’s analysis in every one of these cases has been to look at the segment of the river that is at issue, that has been put at issue.

Now, if you have a sovereignty battle between the State and the Federal Government, a lot of times it’s the segment of the river within the State, or in Brewer-Elliott it was the segment of the river adjacent to an Indian reservation.

Samuel A. Alito, Jr.:

All of this, I take it, derives from the rule that preexisted — preexisted the adoption of the Constitution, that the sovereign owned the navigable rivers within its borders.

Is there some body of common law that addresses this, that would shed some light on whether that means the whole river or it means segments?

Paul D. Clement:

There really isn’t, Justice Alito, because we get our common law from England.

In England actually the common law was different.

At England, the navigable waters ended at the ebb and flow of the tide, so every internal stream within Great Britain was viewed as non-navigable and the property belonged to the riparians.

Samuel A. Alito, Jr.:

So what — what is the origin of the rule that the original 13 States owned the navigable rivers or parts of the rivers, but not the parts that weren’t.

That was some feature of American colonial law?

Paul D. Clement:

Sure.

I mean, it was — it was adopted as part of — the sort of — just the idea of creating the sovereign republic of the United States.

We borrowed our common law.

I think initially nobody focused on these navigable segments.

And it’s important to recognize that this issue really doesn’t even arise in the eastern United States, because until about 1850 this idea that States could own the river beds if they were non-navigable never really occurred to anyone.

So in most of the eastern States as a matter of State law, whether a river is navigable or non-navigable, the riparian owns to the middle of the stream bed.

So after 1851 this Court recognizes — makes clear to the States that they actually have a choice, and so the States that come into the Union after 1851, many of them, including Montana, adopt the rule that, well, unless these streams — if these streams are non-navigable, then we take the river stream.

And so that’s where the question comes up.

So maybe the reason there isn’t a great deal of precedent on this is explained by the fact that this is an issue that largely arises in the western United States.

But that’s why I think it’s such a mistake to kind of look a gift horse in the mouth, so to speak, and not focus on Utah, because Utah is a situation that seems irreconcilable with the Montana Supreme Court decision and the State’s basic theory, because there the special master and this Court recognized a non-navigable segment right in the middle of two navigable portions of stream.

Sonia Sotomayor:

Could you define “de minimis” for me?

Paul D. Clement:

Well, I — I’m — I’m happy to try, but I think — I’m not going to give you–

Sonia Sotomayor:

If we can’t, some guidance or limit that we set for–

Paul D. Clement:

–I’ve thought about this a lot, Justice Sotomayor, and I’m not here to give you a sound bite that’s a bright-line definition of “de minimis”.

I think de minimis almost by its nature takes its — its meaning from the context of the inquiry.

But let me — let me offer at least three guideposts that I think are helpful.

One, as a practical matter I think this Court can look to its own cases dealing with islands in a navigable stream, and those cases are on page 17 of the government’s brief.

And this Court’s cases say if there is a small island in a navigable stream, under an acre, of negligible value, we basically ignore it.

Later cases, though, came along and dealt with islands that were much larger, and the Court analyzed those separately from the navigable stream, and said the United States actually retains ownership to the larger islands, and they don’t go.

So that’s one place to look.

The second place to look, I think, is also a practical judgment based on the nature of the lawsuit.

And here the State itself has come in and identified stretches of riverbed that they think are significant enough to generate $50 million in back rent.

And I think they, having identified those riverbed stretches as being worth $50 million, are hard pressed to then turn around and say, oh, but they are de minimis, just ignore them.

The third rule I would point to is that I think topography has something of a role to play here.

If you look at the special master’s report in Utah or some of the other cases that have decided the point at which the navigability stops, they pointed to features of the river as defining a discernible segment like a tributary coming in or the geology of the — of the bed over which the river runs, if it shifts from kind of a silty loam to hard rock in a canyon, that’s something that you can point to.

Sonia Sotomayor:

–I know you’ve told me that you think Montello is not pertinent because it involved a different issue.

But assuming that it were pertinent, because I’m not quite sure how its discussion doesn’t fit the needs here, one of the factors you haven’t mentioned in terms of de minimis is the portage and its use with respect to commerce; and by that I mean, it appears to me in Montello, what the Court was saying was the history of use of this river showed that these obstructions didn’t stop the flow of commerce.

That what people did was — it appeared some extreme things.

They got off — they got their goods off one boat, walked it a certain distance or drove it by wagon another distance and then put it on another boat or the same boat that they had lessened the load on and moved it over.

And so it doesn’t talk about the distance of that portage; it talks about the impact on commerce.

Paul D. Clement:

Right.

Sonia Sotomayor:

So why isn’t that a factor in the de minimis issue?

Paul D. Clement:

Well, I mean–

Sonia Sotomayor:

If there were a history here.

Paul D. Clement:

–Sure, but, Justice Sotomayor, I think — I mean, there are sort of two portages that are floating around in The Montello and I think it’s important to distinguish between the two.

There is kind of the classic overland portage between the Fox River and the Wisconsin River.

Sonia Sotomayor:

There was a canal in there, wasn’t there?

Paul D. Clement:

Well, afterwards.

But originally that was an overland portage.

And so that’s really not at issue.

But that’s kind of you know, — the classic portage I have in mind is an overland portage.

Now, they are also talking about the extreme efforts, and you could call them portages.

I don’t think you need to, but there is also talk about the extreme efforts to enable navigation on the Fox before improvement.

But that’s nothing like what’s at issue here because those were efforts basically to use the riverbed to — and they had to do some extraordinary things: an ox to pull the boat; lift them up over some rocks.

But they never really left the bed of the river there.

Where they left the bid of the river was the portage over the Wisconsin.

Sonia Sotomayor:

But in The Montello, get they took the cargo off some boats–

Paul D. Clement:

Oh, absolutely.

Sonia Sotomayor:

–and moved it overland to another spot before they put it back on the boat.

Paul D. Clement:

Sure, but my understanding of what was going on there, and maybe I misunderstood it, but I understand what they are talking about there is a portage where you take the cargo out of the boat in order to lighten the draft of the boat so it’s not sitting as deeply in the river, and that allows the lighter boat to be carried over the–

Sonia Sotomayor:

We can both look at the opinion, but I think there is one spot where the court says that in some areas they had to change boats.

Paul D. Clement:

–Well, and that may be, but, I mean, again, I don’t think we are talking about anything like the distances that we are talking here, and also–

Sonia Sotomayor:

I don’t disagree with you, but what I’m asking is, if we had a history of navigation of cargo that went to the beginning of one of these rivers, and I’m not a sailor so my terms — the cargo is taken off and driven by wagon or some other mode to another spot and picked up again.

Is that a different situation than one where that doesn’t happen?

That because this length of portage is so long that it is both economically and physically impossible to transport cargo in that way.

Sonia Sotomayor:

Is that a different case for the question of navigability?

Paul D. Clement:

–Well, sure, because these are all matters of degree, and those would be two different cases.

But here’s what I would point you to.

Which is, if — at the point that you have to take the cargo off of the boats, and then you then have to leave the channel, you don’t just do a little cut around some de minis amount, but you leave the channel and go overland, at that point, I think, that portage demonstrates the non-navigability of the bypass stretch.

And then I think–

John G. Roberts, Jr.:

Even if it demonstrates the non-navigability of the particular stretch, but we would still speak of the transfer of commerce as being along the river.

Paul D. Clement:

–Well I don’t–

John G. Roberts, Jr.:

The sort of the case or analogy I was thinking of is if I say I fly from Washington to Tokyo, and someone says,

“No you didn’t; you flew to San Francisco, then you walked however many yards from one gate to another, and then you flew to Tokyo. “

And I’d say,

“Well, yes, there is a gap there when I walked — part of the distance where I wasn’t flying. “

but people would still say you flew from D.C. to Tokyo.

Now why isn’t this just like that, that the commercial path, the commercial waterway people think of as the Missouri.

And yes, occasionally you have got to get out, and, you know, we can debate how long the portage is, but it doesn’t it interrupt the notion that that whole pathway would qualify as a navigable waterway.

Paul D. Clement:

–Two things, Mr. Chief Justice.

One is, I want to make clear that we very much dispute factually that there ever was this kind of commercial portage over the Great Falls.

And there is really, you know, there’s very little evidence for the record.

The state’s own evidence identifies Fort Benton 30 miles below the Great Falls as the head of navigation on the Missouri.

So there is very much a factual issue here.

But to answer the legal question you are asking, first of all, I am not sure I would have the same instinct about common parlance if you had to go from JFK to La Guardia in a cab.

And I’m even less sure that you would have the same notion if you had to drive from San Francisco to LA to switch planes.

And I think the distance here really does matter.

And I would submit the way you think about this, the way I would think about this is that the very need to bypass, especially a substantial bypass where you leave the river channel, is evidence that that part of the channel, that part of the river is nonnavigable.

And then the question that is left is whether that is de minimis.

Samuel A. Alito, Jr.:

I don’t see why portage is relevant at all.

What is the basis for the rule that I assume it’s the sovereign owns the navigable rivers?

I assume it’s because they are viewed, they were viewed as highways for transportation and commerce.

And to the extent that there is an obstruction that cannot be traversed by a boat, then there isn’t going to be any commerce or transportation along that area.

Now there might be an argument that the sovereign should own the land next to the river so that you could portage around it, but what, what would be the justification for saying the sovereign owns the portion of the river that can’t be traversed at all by boat?

I just don’t understand it.

Paul D. Clement:

Well, I’m with you on that, Justice Alito, and I think logically if you think what’s the highway of commerce here, if there was this 18-mile overland portage rout, that would be the highway of commerce.

But the 17-mile bypass stretch of the Missouri and the Great Falls Reach would not be a highway of commerce.

And I think that gets back to the expectations of the property owner that ultimately underlie these title questions.

I mean, if you have boats going by a river in your backyard, I mean, you have, you are on sort of notice that you don’t own the riverbed.

But if you are in a part of the river that is so unnavigable that it has to be bypassed and you have never seen a boat in your experience ever, then I think you have very different expectations, and your expectations would be the same as somebody–

Sonia Sotomayor:

17 miles is very long.

Paul D. Clement:

–It is.

Sonia Sotomayor:

I think the Thompson is only 2.8 and that is really close to Montello where it talked about, about two miles for some portage areas.

Paul D. Clement:

Well, with respect, can I take both points.

I mean, you are absolutely right.

17 miles have very long.

I mean, for the New Yorkers, you know, the East River is 16 miles long, the whole river.

The Anacostia River is 8 1/2 miles long.

So this bypass stretch–

Sonia Sotomayor:

But I’m not a Midwesterner, and rivers of 200 miles are longer than–

Paul D. Clement:

–Well, these — this is still a big stretch.

And I do think that, like you said, longer than some entire rivers.

But the Thompson Falls, I mean, the two miles of the Thompson Falls, I don’t know exactly where that number comes from.

Its kind of an artificiality.

I mean, there — Again, the State’s own evidence, look at J.A. 57 says that navigation stops at Thompson Falls.

There wasn’t a portage around.

But the other point is I would ask you to look at the 1910 court decree because as I said at the outset, you know, these companies do just put these dams up overnight as, you, kind of, as a lark.

They went through elaborate efforts to secure the property rights.

That’s what generated the 1910 court decree about the Clark’s Fork River.

The Clark’s Fork River court decree in 1910 addresses a stretch of rivers specifically that is just the falls but the six miles of the reservoir that’s created.

And the court holds that that entire region and indeed the entire Clark fork in Sanders County is nonnavigable.

So the stretches that are nonnavigable are much longer than two miles.

If I may reserve my time.

Antonin Scalia:

Thank you, counsel.

Mr. Kneedler.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court:

The Montana Supreme Court committed three basic errors with respect to all three rivers that require a remand for further proceedings to actually weigh and make factual findings concerning the evidence of the relevant reaches of the river for purposes of navigability for title.

We are not talking about navigability for interstate transportation or admiralty or regulatory jurisdiction under the Rivers and Harbors Act or the Clean Water Act.

We are talking about navigability for title.

Elena Kagan:

And why does that make a difference, Mr. Kneedler?

Why do you think that there are separate tests for title than for regulatory authority?

Edwin S. Kneedler:

Well, in the Montello, for example, the question was whether there was admiralty or regulatory jurisdiction over the use of vessels on the upper reaches of the river, and that depended in the Court’s view on whether that stretch was part of an interstate or international highway of commerce.

And so it would make sense to look at the whole river in determining whether it’s a highway; and maybe in deciding whether there is a highway, you would look to a bypass stretch.

You would look at the highway, the land highway to decide whether its useful in interstate commerce.

For title purposes, though, the question is what happens to the stretch of the river right in front of the riparian owner’s land.

As Mr. Clement said, that reflects the expectations of the property owner, that if there are no ships or boats going back and forth, that that property is — adheres to the riparian lands more.

I also think it — it pertains to the control or use of the beds of the rivers themselves.

John G. Roberts, Jr.:

I would think, though, if you start drawing these lines, they become very difficult, in some rivers anyway, to — to apply.

I’m sure there are seasonable fluctuations.

They may be navigable in some seasons, but not in others.

The line at which you pass from navigability to non-navigability may be difficult to ascertain.

It seems to me once you start chopping the highway of commerce up, it does create all those difficulties.

Edwin S. Kneedler:

Well, first of all, we’re not — we’re not talking about chopping the river up into narrow slices.

I mean, I think there has to be a discernible and substantial segment of the river.

Often — often, it will be self-evident from the geo — topographical features of the area.

Are there major falls and rapids over an extended period of time?

But also, the points you’re raising are — I think are inherent, because in deciding where navigability stops under any test or in any circumstance, you could have the difficulties that you have described.

Sonia Sotomayor:

So what’s de minimis?

Edwin S. Kneedler:

Well, I think–

Sonia Sotomayor:

Could 2.8 be de minimis in one situation and not, and how do we tell–

Edwin S. Kneedler:

–I — I think it — I think it may well be.

I think — I think an important — I agree with the points that Mr. Clement made as guideposts.

I think another one — and this pertains to–

Sonia Sotomayor:

–If there’s no falls but there are riparian waters that don’t permit navigability over 2.8, than that’s still navigable?

I’m not sure–

Edwin S. Kneedler:

–No, I think — I think it has to be — I’m speaking of a situation where the river is not navigable in fact.

And that’s the test, navigable in fact, not navigable in law.

If a — if a boat cannot pass in front of the riparian land, then that would be non-navigable.

I agree that–

Antonin Scalia:

And it shouldn’t matter whether it’s 2.8 miles or 1 mile, right?

I mean, if the land is non-navigable — if the river at that point is non-navigable, it’s non-navigable.

Edwin S. Kneedler:

–For title purposes, yes.

Antonin Scalia:

And that’s what we’re talking about, for title purposes.

I don’t see why there — there ought to be any de minimis exception.

Edwin S. Kneedler:

Well, I — I think at some — if you — if you consider part of the — part of what is going on here is who controls the riverbed.

I think it would be unworkable to have a passage, a portion of a river where you have 10-foot strips across the river that are riparian owner-owned, and the State owned everything else, or if you had stripes across a river.

So I think — I think the test also–

Anthony M. Kennedy:

But how would the boat get up there?

Does it just jump over the 10 feet?

Edwin S. Kneedler:

–Well, in The Montello, the — there is evidence that the boat was lifted.

The men got out of the boat and lifted the boat up over the falls.

Anthony M. Kennedy:

Okay.

Then that would work.

Edwin S. Kneedler:

Pardon me?

Anthony M. Kennedy:

Then that would work.

Edwin S. Kneedler:

In that situation.

But if you have a long stretch of — of river where that was not practicable — then you–

Stephen G. Breyer:

You can’t lift a boat over Niagara Falls.

And I — and I read somewhere that — and I hope I am wrong, but I have a feeling I read somewhere that the land under Niagara Falls has long been considered to be navigable, and therefore, it’s owned by the United States.

Antonin Scalia:

The international boundary.

Edwin S. Kneedler:

–It’s owned by the State.

Stephen G. Breyer:

It’s owned by the State.

I mean, the navigable — I get mixed up in that.

Edwin S. Kneedler:

The reply brief I think–

Stephen G. Breyer:

The navigable ones are owned by the State.

Stephen G. Breyer:

Okay.

Everybody’s thought the land under Niagara Falls is owned by the State.

Oh dear, because that sort of wrecks our nice theory that all the steps, all the little bits of it that are non — that are–

Edwin S. Kneedler:

–That’s not an — I think that’s not an extended strip in the way that — the way that we’re discussing here.

Stephen G. Breyer:

–Okay.

Now we have to define what’s an extended strip.

Edwin S. Kneedler:

Well, if I–

Antonin Scalia:

I thought it’s also an international boundary–

Edwin S. Kneedler:

–Yes.

Antonin Scalia:

–As to which there is a different rule.

Edwin S. Kneedler:

Yes, and the–

Stephen G. Breyer:

Okay.

So how much are we wrecking if we just say, look, the bit that’s non-navigable is different from the bit that’s navigable, period?

Doesn’t matter if it’s 5 — 5 feet of land or not.

What — what are we wrecking?

Edwin S. Kneedler:

–I think it does matter whether it’s 5 feet, because the — because an important point here is that, who can make sensible use or control the relevant stretch of the river.

If it’s 5 feet or 10 feet and you had strips that stayed private–

Stephen G. Breyer:

A quick question that you could probably answer just by saying: We decided not to.

But I was somewhat curious.

It’s really the United States v. Montana in this, who owns the land, and it’s a question of Federal law.

It’s going to be highly factual no matter what this happens.

Made for this Court’s original jurisdiction.

And — and normally in original jurisdiction, we appoint a master, it’s worked out, and we review the master’s report.

We can’t do that here because it’s a case about — why didn’t you go into, or why couldn’t you go into, a quiet title action at the lower court?

Edwin S. Kneedler:

–We could, and we have not given consideration to that, but that might be — that might be a possibility.

The United States is not a party to this case and couldn’t be — and couldn’t be bound by the judgment.

Ruth Bader Ginsburg:

Could it have intervened somehow, because the — the United States has come here rather reluctantly, because you recommended against granting cert in this case.

When it was in the Montana court and it was a question of what is the Federal law, the Federal law is going to control.

Everybody agrees with that.

Could the United States have come into the proceedings in the Montana State court?

Edwin S. Kneedler:

Ordinarily, the United States would not intervene in a State court proceeding, or if it did it would remove the case to Federal court.

So that — that would be — that would be a — an additional consideration as to whether to get into this suit.

The United States would — would typically bring its own quiet title action in — in Federal court.

John G. Roberts, Jr.:

Your — your answer a moment ago gives me pause.

You — you said the United States would not be bound by this litigation, but could bring its own quiet title action.

Edwin S. Kneedler:

Well, we would be bound by this Court’s decision, obviously.

But I was just speaking of the law of — the law of judgments.

And if this Court remands back to the trial court with general directions but doesn’t adjudicate particular stretches definitively, then, you know, I think we — that’s the situation that we would — that we would be in.

Ruth Bader Ginsburg:

And if we — if it were remanded, the United States would still stay out of it?

Edwin S. Kneedler:

I assume so.

Obviously, that would be a — that would be a further consideration.

Sonia Sotomayor:

–Am I to take that “de minimis” to you means small enough so that they get the boat physically over the portage, Whether they carry it, drag it?

Edwin S. Kneedler:

No.

I think if they — I think if they can take it through the river, it’s not an interruption at all.

But if — if you have — if you have something that can’t be transversed by a boat at all and it’s long enough that it could sensibly be thought of as a — as a separate parcel adhering to the — to the riparian land — that would be–

Sonia Sotomayor:

Go back to carrying their boat on their shoulders, which apparently in The Montello they did.

What’s the answer–

Edwin S. Kneedler:

–They didn’t carry the boat out of the river.

These were Durham boats that were 70 feet long and — and weighed quite a bit.

Now, maybe there were small canoes; that could have been done.

I — I think a small portage.

Again, I don’t think it’s the length of the portage.

I think it’s the interruption of the — of the navigable portion of the river that — that is — that is relevant.

If it’s large enough to constitute a — a sensible administrable parcel, that that should be enough.

I did want to take one moment to discuss the Madison River because there, as Mr. Clement discussed, the considerations are somewhat different.

First of all, the Court made a similar mistake there by discussing the river as a whole, and the log float in the middle stretch of the river, but not focusing on the relevant stretches where the dams are located.

But it also put a lot of emphasis on current recreational use by drift boats and what-not without proper foundation to — to determine whether that was relevant for title purposes at Statehood, because the relevant question is whether whatever boats are used now are ones that would have been used as custom — this is the language from The Daniel Ball — as “the customary modes of travel” — “travel and transportation at the” — “at the time of statehood”.

John G. Roberts, Jr.:

It’s kind of odd.

Maybe this is — maybe this is Justice Alito’s earlier question.

It’s kind of odd that the more navigable the river is, the more claim the State has.

John G. Roberts, Jr.:

The less navigable — you’re talking about sportsboats and drift fishing — then it’s Federal.

Edwin S. Kneedler:

Well, that’s — that’s a product of the — of the equal footing doctrine.

And the Court has long said that the State gets the beds of navigable waters.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Garre.

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court:

This case is about who owns the riverbeds underlying the rivers at issue.

It’s not about flood lanes; it’s about the riverbeds.

And under this Court’s precedents, it’s settled that title to the riverbeds is conveyed to the State under the Constitution if they are navigable.

It’s been understood in Montana for more than a century that these rivers are navigable.

The rivers were meandered as navigable.

PPL’s deeds — and this is at page 172 of the appendix to the opposition brief — specifically exclude the riverbeds.

The test for navigability that this Court has applied for 140 years, going back to The Montello and The Daniel Ball, is whether the river served as a continuous highway of commerce.

In The Montello, the Court recognized the fact that few of the nation’s great rivers did not include some, quote, “serious interruptions to uninterrupted navigation”.

And the — and the Court’s answer to that geographic fact was not to say then let’s carve out the interruptions and say those aren’t navigable.

The Court’s answer was to say unbroken navigation is not required to establish navigability.

Sonia Sotomayor:

Under your theory, if there’s a fall like this of 17 miles, and a train is 50 miles away and traverses that 17 miles, that portage is good enough.

Gregory G. Garre:

You have to show that the commerce traveled along the river under the customary modes of trade and travel.

Sonia Sotomayor:

Outside of your fur traders and your gold miners, has that happened in any other situation — your alleged gold miners and fur traders?

Has that happened on — on the — in the Great Falls?

Gregory G. Garre:

If you take the Great Falls, the history of portage from 1864 to 1868 was lively commerce of millions of dollars, in today’s value billions of dollars of gold, from Helena to Fort Benton back east.

This is covered in detail by the Solicitor General’s brief that we’ve appended here.

Sonia Sotomayor:

Could you — could you do me a favor and you tell me again — I am having real trouble with the competing evidence in this case with respect to every one of the three areas in dispute and I have some serious questions about whether the court properly granted summary judgment.

Your brief seems to suggest that I can’t do — we can’t do anything about that because it wasn’t a part of the question presented.

Gregory G. Garre:

I–

Sonia Sotomayor:

Your adversary says that it’s a fair question if we determine there is any legal approach — error in legal approach of the court below.

I’m assuming that also means on their weighing of evidentiary matters.

So why shouldn’t we address the summary judgment issue?

Gregory G. Garre:

–The question presented is whether the Montana Supreme Court or whether a court — a court — what the constitutional test would be for a court in this situation.

It’s not even limited to the Montana Supreme Court here.

Gregory G. Garre:

It presents a legal question.

With respect to summary judgment, the problem for PPL is not that it didn’t present enough paper; the problem is it litigated the case under a wrong legal theory.

It litigated the case that the — that the Missouri, for example, was not navigable because you couldn’t take a boat down the falls.

This Court’s precedents for more than 140 years asked the question of whether the river served as a continuous highway of commerce.

We presented evidence, summarized–

Antonin Scalia:

For what purpose?

Were they — were they — were we answering the question for the same purpose, or were we asking it for purposes of whether Federal regulation could extend to the whole river?

For that purpose, it’s easy to say if the whole river is — you know — used for commerce, the Federal Government can regulate even those portions of the river that are non-navigable, that — but that have to be portaged around.

But that’s a different question from who — who owns title to the — to the bed under the — the portions that have to be portaged.

Gregory G. Garre:

–Your Honor, PPL recognizes that The Daniel Ball supplies the test for navigability for title.

This Court recognized that in the Utah case, the Vanguard title case that they hold out.

So the only question is did The Montello apply The Daniel Ball test or did it apply something else?

And the first paragraph of the Court’s decision in The Montello said it applied The Daniel Ball test.

Courts — this Court and lower courts for more than a century have understood The Daniel Ball and The Montello to supply the test for navigability of title.

What they are asking this Court to do is upend more than 140 years of precedent and the amicus brief filed by the States in this case gives — gives the Court a sense of the disruption that this would cause.

Samuel A. Alito, Jr.:

What — what do you understand to be the reason for the rule that the States own the navigable rivers?

Gregory G. Garre:

The reason for the rule was the public trust doctrine which — which sought to keep these rivers free for the public to use for navigation, for fishing and for other uses; and this court’s precedents–

Samuel A. Alito, Jr.:

What do fishing and navigation have to do — for — what does fishing have to do with navigability?

Gregory G. Garre:

–Well, it gets back to the — the public trust doctrine, Your Honor.

Fishing doesn’t have — fishing is a purpose of the public trust doctrine, which is why it was understood–

Samuel A. Alito, Jr.:

Let me put it this way.

Why — why should — why does the State own a navigable river but not a non-navigable river?

Gregory G. Garre:

–Because the navigable rivers were the arteries of commerce in this country, and at the time of the founding it was understood — and this gets to the core issue of federalism in this case — that the States ought to be the ones that control the navigable rivers, not the Federal Government.

Samuel A. Alito, Jr.:

Yes, and if that’s the reason — if that’s the reason for the rule, than what is the justification for State ownership of a portion of the river that is not navigable?

Gregory G. Garre:

I think this gets back to the question of whether you can just chop up the rivers into navigable and nonnavigable bits.

And we are talking — this Court, Justice O’Connor observed in her dissent in the Phillips Petroleum case that navigability wasn’t decided inch by inch.

What the other side is asking you to adopt here is a test of navigability that’s at least by mile by mile, if not acre by acre, which is completely different than this Court has ever assessed navigability.

Samuel A. Alito, Jr.:

The rule that you are arguing for might be an established rule that we should follow, but as a matter of theory I don’t understand what the justification is for State ownership of a non-navigable portion of the river if the reason for the underlying rule is so that people will not put up obstructions on the river so that they — it can be maintained as an — as an avenue of commerce.

I can see that you — why the State would own that, because otherwise riparian owners could put up fences and obstructions and charge tolls and — and that sort of thing; but if it’s not navigable I don’t see what it has to do with — with commerce or transportation.

Gregory G. Garre:

What — what the Framers were concerned about and this is also reflected in the Northwest Ordinance 2, was ensuring that the navigable waters, the major arteries of commerce in this country, remained open.

Gregory G. Garre:

And so they — they applied a much more — much broader conception of navigability than as–

Antonin Scalia:

But — but they are closed where they are — they’re impassable for ships anyway.

They’re closed.

What do you mean, remain open?

Gregory G. Garre:

–And so that was the argument–

Antonin Scalia:

You’ve — you’ve got falls.

You’ve got waterfalls, you got rapids.

What does it mean to be sure that that river remains open to commerce?

Commerce is impossible over it.

Gregory G. Garre:

–And so that was the argument that the district court adopted in The Montello case, and this Court emphatically rejected it.

And by the way, the portage in The Montello case was 5 miles long.

That’s reflected in the — the record in that case before this Court.

Ruth Bader Ginsburg:

Mr. Garre, what is — you say that you are not taking just — you look at the whole river as a whole.

You are saying no, that isn’t the position?

Gregory G. Garre:

No, it’s not.

Ruth Bader Ginsburg:

And that it’s also not inch by inch.

So what — when is segmentation appropriate?

Gregory G. Garre:

I think the relevant stretch or segmentation is really a litigation term.

Our position is this Court’s test: continuous highway of commerce.

You would take the part of the river at issue in a case, take that part and look — ask the question, was that part of a continuous highway of commerce or not?

So if you found yourself in Cataract Canyon in the Utah case, you would ask yourself that question, and you would say, no, this was not part of a continuous highway of commerce because no one argued either that the canyon was portaged or that goods was traveling down the Colorado River through the canyon and out into Arizona.

If you ask yourself that question in this case along the Great Falls, you would say yes, because the evidence was unrebutted that millions of dollars of gold was traveled up from Helena to Fort Benton along the — the Missouri River with the aid of a portage, and that that was unquestionably a highway of commerce.

What they are asking this Court to do is chop rivers up into navigable and nonnavigable pieces.

How would that impact the public trust doctrine?

The — the brief filed by the National–

Ruth Bader Ginsburg:

So you just — so you are disagreeing with the United States, which has given us its view of what the Federal law is.

It doesn’t coincide with Montana’s.

Gregory G. Garre:

–The United States has sided completely with Montana.

The answer it gives for what is a short interruption in its brief is an interruption that doesn’t warrant separate consideration.

That’s on page 17 of its brief.

Gregory G. Garre:

That’s the epitome of a circular test, and–

Stephen G. Breyer:

Just out of — I mean, to waste your time for a second.

Why do the feds own the land underneath the — and why — under the nonnavigable part?

Why — why do the feds own — own the land under — under nonnavigable streams?

Gregory G. Garre:

–I think if you — if you applied the proper test here you would conclude that the river–

Stephen G. Breyer:

I mean, a little creek somewhere which you’d think, gee, those belong to the State, but it turns out the feds own the land underneath the little creek; is that right?

Gregory G. Garre:

–I think what — the nonnavigable parts–

Stephen G. Breyer:

Yes.

Gregory G. Garre:

–didn’t transfer under the equal footing doctrine.

Oftentimes those were subject to separate conveyances, so they might come into private property.

I think–

Stephen G. Breyer:

I see.

So the rule is on the non-navigable streams it depends on what the conveyance was at the time of statehood, and those are individual matters, and sometimes you see the feds own them and sometimes the States.

Gregory G. Garre:

–And what was–

Stephen G. Breyer:

Is that right?

Gregory G. Garre:

–Yes, I think that’s right.

Stephen G. Breyer:

Okay.

Gregory G. Garre:

And what was critically important to the — to the Framers was that the States would have control over the navigable waterways.

This Court has described that as an essential attribute of State sovereignty.

John G. Roberts, Jr.:

But we are talking about the land at the bottom of the — the river.

What is it that the State can’t do on the navigable waterways that it wants to do?

Gregory G. Garre:

Well, owner — ownership — along with ownership goes the right to control whether facilities can be built on them, bridges or pipelines; it goes — along with that goes the rights to mineral leases–

Anthony M. Kennedy:

But as the Chief Justice is indicating, I think, this concerns who owns the bed; and that is different from navigable waters of the United States.

And — and some of the answers you gave to Justice Alito about the purposes and the reasons for navigable waters of the United States are quite different, really, than for the considerations we have about riparian ownership.

The navigable waters of the United States can be controlled by the United States for many purposes, but that is concurrent with a separate document — doctrine for underlying ownership of the bed.

Gregory G. Garre:

–Right.

Anthony M. Kennedy:

And it’s not clear to me that the test for navigable waters is the same in each case as to the whole river.

Gregory G. Garre:

Well, I think that the test that we are articulating is The Daniel Ball and Montello Test — continuous highway test.

I think with respect to the riverbeds, it’s always been understood that with controlled riverbeds, along navigable waters, States have a right to control fishing, navigation and other aspects.

Stephen G. Breyer:

But, now, Montello was a case — to follow up this same question.

Stephen G. Breyer:

Montello, I take it was not a title case.

Montello was a regulation of the stream case.

So I can understand perfectly well why that language in Montello applies for the reason Justice Kennedy just said.

Now, I grant you that in later title cases this Court has taken the same words and written them.

But is there an instance in the later title cases where that language has played a controlling role?

Gregory G. Garre:

Well, the–

Stephen G. Breyer:

What case should I look at to see — was really meant that this — to start with where Justice Scalia was and say what Justice Kennedy just said and then thinking well, I’m thinking well Montello is a case that involved a different purpose and now the later cases, although they quoted the language, it didn’t have a role.

Am I right or not?

Gregory G. Garre:

–This case has recognized always that The Daniel Ball and the Montello is the test for navigability for title as well as admiralty.

It has never drawn the kind of distinction that PPL and the United States has asked be drawn here.

Antonin Scalia:

The question is has it held that.

Do you have a case where it would have made a difference?

Gregory G. Garre:

Not of this Court.

The lower courts–

Antonin Scalia:

Okay.

Gregory G. Garre:

–have relied upon The Daniel Ball and Montello in plenty of circumstances adjudicating a title.

I think the Court has to think about what the world would look like if the Court adopted PPL United States–

Antonin Scalia:

If this is such an understood and traditional rule, why didn’t Montana make its rights known earlier when these private owners bought the land?

Indeed the State gave them condemnation power to flood adjacent lands so that they could build their dams.

And you say while all this was going on, well of course everybody knew that Montana owned this land.

Now they come back what, 100 years later and they not only want to get the land back, they want to tax them for their use of it over all these 100 years?

That’s extraordinary.

Gregory G. Garre:

–PPL’s deeds, Your Honor, PPL’s deeds exclusively exclude the riverbeds at issue in this case.

So PPL can have no claim to those lands, and in fact in its supplemental brief says that the United States owns the lands.

We are not talking about the flood lands here, we are talking about between the low water marks.

Those lands were surveyed and meandered at statehood to show that they did not convey to private parties.

Montana courts have recognized for more than a century that these waters are not navigable.

Everybody understood that they were — navigable.

The reason why this issue only arises now is because of a 1999 decision of the Montana Supreme Court that said that the State, made clear that the State had a fiduciary obligation to seek compensation for the use of the riverbeds.

So that then teed up the question of whether the State could actually charge rent for the riverbeds.

Gregory G. Garre:

The State in this case–

Elena Kagan:

And what about other land owners on the riverbeds.

If Montana wins this case will they be paying rent as well?

Gregory G. Garre:

–They are not using the riverbeds, Your Honor.

The reason why the facilities here are using the riverbeds is because they actually sit on it.

There are other instances where private land owners have easements and leases, like mineral leases with the State, under the — because of the accepted understanding that the State does own those lands.

And this is not at all unusual.

If you look at the State’s brief, Washington and Oregon have thousands of these types of permits because it is established that if the water is navigable than the State owns the riverbeds and there are consequences that flow over this.

But this really isn’t a fight between the State and the private land owners.

It’s a fight between the State and the United States.

Because if this case–

Elena Kagan:

I guess if I could understand then.

You think that this is a one of a kind landowner.

There are no other land owners in Montana who are in this situation of PPL?

Gregory G. Garre:

–No, I think there are other land owners who have asserted — who want rights to get minerals along rivers or have peers or bridges, and in those situations they get permits from the State to use it.

But I think what’s going to happen is if this Court declares that every mile or so that is in interruption is nonnavigable, then title is going to transfer to the United States because under this Court’s precedent in Utah, the Court held that if waters were not navigable the United States would have–

Sonia Sotomayor:

Is there a mile stretch anywhere on this river.

Gregory G. Garre:

–A mile stretch?

Sonia Sotomayor:

Yes.

Is there a mile stretch in which the boats stop?

Some water in the middle–

Gregory G. Garre:

The two areas at issue here is the Great Falls stretch–

Sonia Sotomayor:

–I know the two at issue.

But you’re saying if we rule the way we do, we are going to slice it up and so does the Attorney — the Solicitor General’s office say, we are going to slice it up half mile or half acre by half acre.

I am not sure how that happens.

I go back to Justice Kennedy’s question, which is does a boat stop mid stream?

Gregory G. Garre:

–So the test would be any non-de minimis interruption, that’s the one that PPL and the United States are urging here.

There are thousands of dams in the country.

There is Niagara Falls which for more than a century its been understood that the State owns it, not because its an international boundary, that’s a line plucked out of the decision.

Read the decision and–

Stephen G. Breyer:

All right.

So how do I find that out.

If I start with a practical premise of not wanting to interrupt expectations.

I also believe that it’s the most common thing in the world for electric power companies to put hydroelectric facilities where there are water falls or rapids and that’s true all over the country.

So what’s the status quo with the — you know, somebody could count up how many hydroelectric plants there are on water falls and what’s the general view?

Are those hydroelectric companies been thinking that they are leasing or buying from the feds or from the States?

I mean, I don’t know what’s happened in the past.

And I looked at the briefs and I can’t get a very good picture.

Gregory G. Garre:

–The best evidence I think we have about this question of the implications comes from the brief filed by 26 States, which explains that if this Court adopts the kind of segmentation approach, any interruption that is not de minimis has to be carved out it’s going to wreak havoc in States across the country especially, in the western States.

Again, getting–

Stephen G. Breyer:

When you say wreak havoc, you mean to say that the States have leased those strips with the water falls which are impassable to hydroelectric companies and the leases will have to be renegotiated or something like that?

Gregory G. Garre:

–I’m not referring to specific leases on that.

I’m talking about things like public access for fishing, for example.

The State decided that the Steelheader case in Oregon, and this is what’s going to happen, either the public — private landowners are going to claim people coming along my banks to fish, they don’t have access to these waters.

If they were navigable — understood as navigable waters owned by the State, it’s clear that they had would have access.

There is going to be clashes, there’s going to be–

Antonin Scalia:

Well, I thought you say it doesn’t belong to the private individuals.

I thought you said it belongs to the United States if it doesn’t belong to the–

Gregory G. Garre:

–What this Court has said is if it’s not navigable, the United States has it.

The question of–

Antonin Scalia:

–They are.

And you think the United States is going to keep off these fishermen.

Gregory G. Garre:

–The question is whether there would be a separate conveyance from the United States.

There is certainly going to be plenty of private landowners, I think, who are going to claim private ownership.

So there is going to be some sorting out to do.

Antonin Scalia:

But you think they are wrong, right?

Gregory G. Garre:

Well, no.

If the river is not navigable, then the land didn’t convey under equal footing doctrine.

There would be a separate question of whether they conveyed by some other Federal patent, land patent, or the like.

And there are certainly — certainly are plenty of those.

Gregory G. Garre:

But I think what is clearer is–

Ruth Bader Ginsburg:

Mr. Garre, you said, this is genuinely a controversy between the States and the United States, but the United States is not a party to this litigation.

And we know from the briefing before us, the United States takes a different position than Montana, it doesn’t agree with you.

But if this case — how can a case be decided without any input from the United States when you say that’s the true dispute is between the States and the nation?

Gregory G. Garre:

–Well, the United States is here.

It’s given its views.

It’s true that it didn’t participant below and it is a little bit unusual.

What’s weird is that the United States has never actually asserted ownership to the riverbeds in this case.

But I think–

Elena Kagan:

Does PPL pay rent to the United States.

Gregory G. Garre:

–Not with respect to the riverbeds.

There is a statement in the brief that suggest that they pay rent.

That’s with respect to the upland, the flooded lands, for example, along the reservoir.

The United States has never charged rent for the use of the riverbeds themselves between the low water marks.

Anthony M. Kennedy:

Would you help me with this?

Navigable waters of the United States for purposes of Federal jurisdiction over many activities such as boating is one concept.

Navigable waters of the United States for purposes of State ownership of the bed serves different purposes.

Are the — are the boundaries and the definitions of what is navigable co-ex-extensive and parallel and precisely the same in each case?

Or, on the other hand, are there some cases where a body of water, say the falls, is navigable waters of the United States but not navigable waters of the United States for purposes of bed ownership by the State?

Gregory G. Garre:

There certainly–

Anthony M. Kennedy:

And, and if there is a difference, can you tell me a case?

And I think Justice Scalia basically was asking this earlier.

Gregory G. Garre:

–There are two — well, there is three distinctions between the test for title and the test for regulatory purposes.

Anthony M. Kennedy:

Yes.

Gregory G. Garre:

None of which bear on the dispute in this case.

One is for title.

You look at the time of statehood.

You don’t look at the river at a later time.

The next is, is that for purposes of title, you look at the river in its natural state.

You don’t look at improvements.

Gregory G. Garre:

And the third is, for purposes of title, kind of commerce you consider is actually more expansive in the type you could consider for regulatory purposes.

This case, the focus has been on the rivers at the time of statehood, their use as highways of commerce without improvements, which is in the heartland of the test for navigability under The Daniel Ball and the Montello.

None of the distinctions that this Court has ever recognized would bear on this, nor would it make any sense, I think, to say that the rule that we identified in the Montello that has, for more than a century has been established as the test for title for navigability somehow has to be applied differently in this case in a way that would require breaking up the rivers.

And I think–

Anthony M. Kennedy:

But it is conceded, is it not, that with — if we rule for the power companies in this case, there still may be a situations in which these waters can be navigable waters of the United States for other purposes other than ownership of the bed.

Or am I wrong on that?

Gregory G. Garre:

–No, I think the United States’ position is, say they are navigable for Federal purposes but not for State purposes.

And I think — and they have taken what I think is a pretty remarkable position.

If we look at the brief that we have appended to our brief, the United States in the Montana Power Company case, the United States is saying, the very same stretch of the Missouri along the Great Falls is navigable because it serves as a continuous highway of commerce and the falls did not prevent the river from being used as a continuous highway and, therefore, it’s navigable under the Montello and The Daniel Ball, which is the theory that they recognize.

And now they are here saying, well, that was only for regulatory purposes and not for title purposes.

But it’s the same test in both cases, and that’s the test that the nation has understood for more than 150 years.

John G. Roberts, Jr.:

No, but I’m not sure it has the same consequences.

It seems to me that regardless of who prevails in this case, the State will be able to exercise regulatory jurisdiction over the waters.

You know, you can’t fish during these seasons, or there are different limits on how many fish you can take.

And so will the Federal government.

It will be able to apply Federal law to the river regardless of who owns parts of the river, regardless of who owns the land underneath.

Gregory G. Garre:

And so this Court has always recognized the State’s authority to make those decisions as an essential attribute of their sovereignty.

And that’s why the State’s–

John G. Roberts, Jr.:

Without regard — But I would say without regard to whether they happened to own the land under the river or not.

Gregory G. Garre:

–No, when they own the land under the river, that — the ability to control access along those rivers and fishing and the like is an essential attribute of State sovereignty.

So just saying that, well, the Federal government and State government can regulate together is, I think, an important intrusion on State sovereignty as this Court has always understood under the Equal Footing Doctrine and the Public Trust Doctrine.

And you also have the problem of competing regulation of these rivers when you go from mile to mile, interruption to interruption, potentially thousands along rivers.

And that’s laid out in the brief by the environmental groups here, the National Wildlife Foundation, Tribal Unlimited and other groups that talk about the problems with fragmented regulatory jurisdiction.

And you also get into the question of public access for fishing, too.

The rivers are used for commerce, but the Public Trust Doctrine was always used to protect access to rivers for fishing, too.

And so if you look at a place like the Great Falls or the Thompson Falls, these are among the most sought after fishing rivers in the world.

Antonin Scalia:

You are willing to concede on behalf of the State that if we find that the State does not have ownership of the bed, the State does not have regulatory jurisdiction for all of these purposes that you were now describing?

Gregory G. Garre:

Absolutely not, Justice Scalia.

Antonin Scalia:

Well, then your argument doesn’t carry much weight.

The State can continue to regulate all those things whether or not it owns the bed.

Gregory G. Garre:

And so every time this Court has said that the ability to do that is an essential attribute of sovereignty, it must not have meant it because the United States could do it, too.

I mean, it is important to the states because having the sovereign capacity over those riverbeds as navigable waters under the Public Trust Doctrine is critical to the State’s authority.

Antonin Scalia:

Well, you have sovereignty over the land owned, owned by other private persons.

Gregory G. Garre:

And I think it gets back to the Public Trust Doctrine, the Equal Footing Doctrine, what this Court has said in the Utah case and other cases about the role of states in regulating navigable rivers and owning title to the river beds underlying those rivers.

John G. Roberts, Jr.:

We haven’t talked much about the Madison.

What is your best piece of evidence with respect to the Madison for the proposition that it was navigable at statehood?

Gregory G. Garre:

Well, there was some evidence of use by fur trappers and the like.

It was not extensive because this area was relatively sparse.

John G. Roberts, Jr.:

Well, fur trappers are going to go — they don’t need a lot of water to ply their canoes up the river.

Gregory G. Garre:

Well, and this Court has recognized that things like pirogues and bateaux were sufficient to establish the continuous highway of commerce.

I think the point on the Madison is the susceptibility for use as a navigable river.

And the main point that we made below is that where their own expert had recognized that PPL’s dams had impeded the flow of water over of the river, that if those dams impede the flow of water of the river but yet today there are thousands of drift boats similar to the boats that would have used it at the time of statehood, then it is good evidence that it was susceptible for use.

But I think the Madison is in a different category than the Missouri and the Clark Fork.

I do want to answer the question about the The Des Plaines River in the Economy Light case, there was an 18-mile portage.

That’s made clear at page 18 A of our addendum where the government recognized that.

In — Montello it was a five-mile portage.

And there are other examples of portages.

Sonia Sotomayor:

Counsel, was that the canal — what subsequently became the canal area.

Gregory G. Garre:

I — I think that’s right.

It’s in the testimony in that decision.

But certainly 17 miles — and the other thing is that in the amicus brief, on page 27 of the Tubbs brief, she suggests that the actual portage before Statehood was only 8 miles.

I don’t think you can draw a constitutional line between 5, 7, or even 10 miles and 17 miles.

We think the line the Constitution draws is whether — asks whether the river was served as a continuous highway of commerce, notwithstanding any interruption along that way.

Sonia Sotomayor:

I think that then the simplest rule is, is the river from shore to opposite shore — any portion of it — did boats traverse it.

That would be I think what Justice Alito was asking.

Gregory G. Garre:

But that’s not even a rule that PPL was asking for, because they acknowledge that some interruptions would be navigable.

They call it “non-de minimis”.

It’s not clear how you get there.

If you go between the low watermarks, there’s only a part of the way that you could actually bring a boat up, but yet it’s established that the State owns the entire riverbeds between low watermark to low watermark.

After traversing the Missouri and the very falls at issue in this case, Meriwether Lewis described it as

Gregory G. Garre:

“he didn’t think the world could furnish a finer example of a navigable river through a mountainous country than the Missouri. “

That assessment made by the President’s own agent, charged with assessing the suitability of the Missouri for commerce, was consistent with more than 140 years of this precedent–

Anthony M. Kennedy:

Did he write that during his 30-day — 32-day portage?

[Laughter]

Gregory G. Garre:

–Your Honor, it was an 11-day portage.

At the time of Statehood, it was a one-day portage.

I think what’s significant is he wrote it after that portage.

And yet he recognized that there was not a finer example of a navigable river through a mountainous country.

That assessment is consistent with this Court’s precedents for more than 140 years.

It’s consistent with the actual use of the Missouri as a continuous highway of commerce along the very stretch at issue here.

We don’t believe that PPL or the United States has — has provided a legal reason for this Court to overturn the judgment of the Montana Supreme Court that the Missouri or the other rivers at issue in this case are navigable.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Clement, you have 4 minutes remaining.

Paul D. Clement:

Thank you, Mr. Chief Justice.

A few points in rebuttal.

First, it’s–

Sonia Sotomayor:

Portages that are de minimis.

Point me — I don’t care where they are in the United States — give me a list of some that are de minimis.

Paul D. Clement:

–I mean, I don’t have any de minimis portages for you.

The portages he’s talking about, as far as I can tell, the 5-mile and 8-mile are portages between rivers, and that has nothing to do with whether the bypassed stretch of the river would be non-navigable because it’s de minimis, because if you portage between two rivers, you’re not bypassing anything.

Where I can talk about sort of portages being de minimis, if you look at the special master’s report in the Utah case, there are a few places in the Cataract Canyon where he talks about portages, and he talks — you know, in parts where they got boats to.

But the — the key point is, whenever the Court has talked about portages in the context of navigability, they’ve pointed to them as suggesting non-navigability.

And in certain circumstances, well, you had to portage a little bit, but that’s not enough to make the stretch non-navigable.

Anthony M. Kennedy:

And what were your — what were your other four points you were going to give us?

Paul D. Clement:

Well, I’ve given you a couple, I’d start with the deeds.

Your Honor.

You know, the — the State wants to make something of the fact that the deeds stop at the river.

But that’s true throughout the State.

And the question then becomes what rule governs the ownership of the riverbeds?

And that’s where navigability versus non-navigability.

Paul D. Clement:

So the deeds don’t prove anything.

That’s just the way the deeds were written.

The next point: Justice Kagan, you asked about, you know, did the other owner — other people on the river have anything to fear.

And the answer as far as I heard was, well, these are different.

They sit on the riverbed.

Well, two things, Your Honor: so do some of the peers.

And that’s why people have filed amicus briefs and are very concerned.

But more to the point, these things have not moved under the riverbed recently.

They’ve been sitting there for 100 years, and the State lent its eminent domain power to us to help us build these dams.

These dams were critical to developing energy and development in this area.

And now 100 years later, they want compensation for the little river strip–

Antonin Scalia:

Could the United States demand compensation?

Paul D. Clement:

–We pay the United States compensation right now.

The difference is, the United States isn’t going in afterwards and trying to put a hold-up to us and saying it wants $50 million for this.

We pay rents to FERC for some of these lands.

Actually, the State gets 37.5 percent of the–

Antonin Scalia:

For the riverbed?

For the riverbed land?

Paul D. Clement:

–Well, look at footnote 3 of the government’s brief.

I mean, again, the problem here is if you want people to have deeds that really are — parse out whether it’s riverbed or upland, they don’t because everybody defaults to the bottom line — the background rule.

The background rule is if it’s a non-navigable river, the riparian owners, whether it be the United States or private property owners, get to midway, or if they own both on both sides, they get the whole thing.

I think on de minimis, we’ve talked about it a lot.

But I would point out that the one thing we know that is not de minimis from Utah is 4.35 miles.

Because that’s what the Court analyzed separately in the portion of Cataract Canyon.

Every stretch at issue here, every dam at issue here, is more than 4.35 miles.

Fully five of the dams are on the 17-mile Great Falls stretch, which they agree is impassable.

The other five are reservoir dams that create reservoirs that extend over 4.35 miles.

There’s nothing de minimis in the best evidence that is the $50 million in compensation.

I think the $50 million in background also shows that although this is a dispute between Montana and the United States, my client is caught in the middle of it, and they are obviously concerned about it, too.

I want to talk about what’s disputed and what’s undisputed.

Paul D. Clement:

What is undisputed is the 17 miles is impassable.

That’s enough, as I say, to give us judgment as a matter of law for the five dams on that stretch.

What is hotly disputed, despite my friend’s representation, is whether or not there was through commerce through this bypass route.

He suggests it’s undisputed that gold went from Helena down to Fort Benton down to St. Louis.

And that of course is not disputed.

But it went on roads.

It didn’t go on the upper Missouri.

And if you want to know who’s got the better of this argument, I ask you to think about this question: the United States Army built a 600-mile overland road from Fort Benton, the traditional head of navigation on the Missouri, to Walla Walla, Washington.

Now, if the State is right and the upper Missouri and the Clark Fork were navigable, all they had to do was have a 60-mile road to connect the two.

They were never navigable.

Thank you, Your Honor.

John G. Roberts, Jr.:

Thank you, counsel.

The case is now submitted.